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High CourtAllowedNairobi CMC Criminal Case No. 48 of 2013 (re Kajiado PMC Criminal Case No. 11 of 2013)· [2018] KEHC 9163 (KLR)

Daniel Joseph Mamiro v Republic

High Court of Kenya
8 March 2018
LKL. Kimaru
657 words in judgment
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The bottom line

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Your sentence must be proportionally reduced for time spent in custody, and you can challenge unfair treatment regarding sentence remission.

What this practically means

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Executive summary

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The Applicant, Daniel Joseph Mamiro, was charged with robbery with violence contrary to section 296(2) of the Penal Code in Nairobi CMC Criminal Case No. 48 of 2013. After full trial he was acquitted of that charge but convicted of the cognate offence of handling stolen property under section 322(1) as read with 322(2) of the Penal Code, and sentenced on 18th November 2016 to four years imprisonment, the trial court noting he had spent three years in remand custody. He had also been convicted in Kajiado PMC Criminal Case No. 11 of 2013 and sentenced on 2nd January 2015 to seven years imprisonment. He applied to the High Court complaining that he had not benefitted from remission of sentence because remission had been repealed by Parliament at the time of his first conviction and its reinstatement was not retroactive, leaving him in a legal limbo while convicts sentenced before and after him benefitted. He also relied on section 333(2) of the Criminal Procedure Code regarding remand custody. Mr. Ondimu for the State did not oppose the application. Relying on the Court of Appeal decision in Ahmad Abolfathi Mohammed, Kimaru J held that taking custody periods into account requires proportionate reduction of the sentence, not mere deduction. Finding the Applicant had been discriminated against on remission, the court reduced the Kajiado seven-year sentence to four years with effect from 2nd January 2015.

Key legal issues

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01

Whether the trial court complied with section 333(2) of the Criminal Procedure Code in accounting for remand custody

Holding

The trial court merely deducted the remand period from the seven-year sentence rather than proportionately reducing the sentence, which did not satisfy section 333(2).

Reasoning

The court adopted the Court of Appeal's interpretation in Ahmad Abolfathi Mohammed that 'taking into account' custody time requires the sentence to be reduced proportionately. Merely stating that the period was considered while ordering the sentence to run from conviction amounts to ignoring the period spent in custody.

p. 2
02

Whether the Applicant was discriminated against regarding remission of sentence

Holding

The Applicant was placed in a legal limbo because remission was repealed, then reinstated without retroactive application, leaving him prejudiced compared to convicts sentenced before and after him.

Reasoning

The court accepted the Applicant's argument that he was discriminated upon because convicts sentenced before and after him benefitted from remission while he, caught in the lacuna between repeal and reinstatement, did not. The State did not oppose the application.

p. 2

Legal principles established

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  • Taking into account the period spent in custody under section 333(2) of the Criminal Procedure Code means reducing the imposed sentence proportionately by that period, not merely ordering the sentence to run from the date of conviction.

Court orders

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  1. 1.The sentence of seven (7) years imprisonment imposed in Kajiado PMC Criminal Case No. 11 of 2013 on 2nd January 2015 is reduced to four (4) years imprisonment with effect from that date

Authorities

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Legislation

  • Penal CodeSection 296(2)
  • Penal CodeSections 322(1) and 322(2)
  • Criminal Procedure CodeSection 333(2)

Cases cited (1)

  • Ahmad Abolfathi Mohammed & Another Criminal Appeal No.135 of 2016
    unreported

    Interpretation of section 333(2) of the Criminal Procedure Code on taking remand custody into account in sentencing

On appeal from
Kajiado Principal Magistrate's Court
Kajiado PMC Criminal Case No. 11 of 2013
Jurisdiction invoked
Sentencing review jurisdiction under section 333(2) of the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Daniel Joseph Mamiro v Republic", Case Analysis (2018). Nairobi CMC Criminal Case No. 48 of 2013 (re Kajiado PMC Criminal Case No. 11 of 2013). Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.